Gay Dads Australia

[youtube=http://www.youtube.com/watch?v=G6XJn_OQn38&hl=en]

[Link: Channel Seven]

THE first homosexual couple in WA approved an adoption are still waiting because no birth mother has wanted her child to have “two dads”.
Liberalised laws introduced by the Labor Government in 2002 allow same-sex couples to adopt children if they can convince authorities they would make suitable parents.

The Department for Community Development approved the couple’s application about three years ago, but so far no birth mother has chosen to give her child to them.

The two men may never become fathers because under the law a child’s birth parents also have to approve the new parents.

Gay and Lesbian Equality WA convenor Rod Swift said people should accept that already there were gay and lesbian mothers and fathers in the community, and same-sex couples were making excellent parents.

“Gay and lesbian couples now see that parenting is something they do want to do,” he said.

“There are more and more people choosing to conceive.

“It’s not something they’re choosing like they go out and get a pet; it’s something they are actively thinking quite responsibly about.

“The fact that they’re gay or lesbian is irrelevant to their ability to parent, in fact most are fantastic parents.”

The so-far-childless gay couple aren’t receiving any sympathy from Australian Family Association WA Branch president John Barich, who was thrilled they had not been given a child yet.

Mr Barich said it would be cruel to the child and it was only natural that a birth mother would choose a man and a woman, rather than two men, to be parents to her child.

“We’re very glad, we predicted it,” he said.

“A child is not goods to pass around, and the child doesn’t get to give his or her opinion until it’s too late — then he finds out he’s got two dads.

“Having children is not a right, it’s something nature gives you.

“Nature hasn’t given it to them — therefore they ought to desist and dedicate themselves some other way to humanity.

“Playing mothers and fathers is obviously not what is meant for them.”

But Mr Swift said: “When the Australian Family Association and other conservative groups turn around and say it’s cruel to children not to give them a mother and a father, they don’t realise they’re living in some sort of utopian fantasy land.”

The Liberal Party strongly opposed the introduction of legislation allowing adoption by gay couples, but is not committing to repealing the laws if it returns to power in WA.

“We are yet to discuss any possible changes to the legislation under a Liberal government,” Opposition Leader Paul Omodei said.

The Department for Community Development said no same-sex couple had applied to adopt since the historic first approval.

[Link: Original Article]

A GAY couple, the first to be given approval to adopt a child in WA, are still waiting to become parents.
The male couple were given approval by the Department for Community Development in 2003. Three years later, their dream of becoming parents is in limbo.

The two gay men are among 112 couples on a waiting list to adopt a child in WA. Most wait an average of two years for a child, according to the department.

The couple were the first to be approved in WA under controversial laws passed in 2002, which allow same-sex couples to adopt children if they can convince authorities they would make suitable parents. It is the same criteria used for heterosexual couples.

But WA’s laws also give relinquishing parents a say in who the new parents will be – meaning the gay couple may never be accepted.

The couple cannot adopt an overseas child because no other country accepts applications from same-sex couples.

The issue has polarised politicians and the community since The Sunday Times last year revealed the couple had been given approval to adopt.

Australian Family Association WA president John Barich said allowing the couple to adopt was an “obscene” social experiment. He was glad the couple were still on a waiting list.

“We don’t know how these kids are going to grow up and we’re not entitled to impose that on a child – it’s a social experiment,” Mr Barich said. “Kids need a mum and a dad. That’s the natural way.

“There are so many heterosexual couples who are desperate for a child to adopt, and instead, we’re going to give a child to two gays or two lesbians. It’s just weird. It doesn’t make any sense.”

Former Opposition leader Matt Birney also disapproves, saying it was disappointing, disturbing and against a child’s best interests.

Greens MP Giz Watson, a lesbian whose partner of 17 years has three children, said critics of gay adoption were out of touch.

She was disappointed the couple had not yet been given a child because sexuality had no bearing on being a good parent.

[Link: Original Article]

State MP Giz Watson and John Barich, national vice-president of the Australian Family Association, put their cases on the issue of allowing gay couples to adopt

GIZ WATSON, the case for . . .

TWO men have exercised their rights under WA law to be considered as prospective parents of a child who needs a new family, a child who has been relinquished for adoption.
Their chances of becoming parents in this way are slight. There are already more than 100 other couples on the waiting list; in 2003/04 only three children born in WA were placed in so-called “stranger adoption”.

Other countries offering children for adoption prevent children from going to same-sex couples; and the relinquishing mother can (quite rightly) limit or proscribe who the child goes to (for example, she can say they have to be Catholics or Caucasian).

Under WA law, in the case of stranger adoption, the interest of the child always comes first and the decisions of the relinquishing parent and the adoption service are final. Neither a heterosexual nor gay couple discriminated against for good reason in this process can appeal. These decisions cannot be appealed under the Equal Opportunity Act.

So why all the excitement? What exactly is behind this debate?

Are lesbian and gay parents less capable? The scientific evidence is to the contrary and more than 50 scientific studies have shown this.

The Australian Psychological Society, representing more than 15,000 psychologists, says that gays and lesbians parent no differently from heterosexuals.

Jenny Milbank, of Sydney University, reviewed the last 30 years of research on lesbian and gay families. She concluded that it was family processes, not family structures, that determined children’s welfare. Parenting skills and the management of stress and conflict determined dysfunction in children, and these were completely unrelated to gender or family structure.

Are children in gay families in any danger? Statistics from Australia and other countries show that children are more likely to suffer neglect or abuse in heterosexual families.

The facts are that more than 90 per cent of the perpetrators of child abuse are men who identify as heterosexual – overwhelmingly their victims are female, the majority are related or known to their victim, and most offences occur inside the hallowed family home. Of course, the vast majority of heterosexual families provide safe and loving homes for children, and gay families do so equally.

Will children in gay families be teased or bullied at school? Children may be teased for having big ears or a bald father, or for being thin.

Parents and schools are fully aware of bullying issues and employ intelligent approaches to conflict resolution. Teasing is a behaviour-management issue, not a “gay-parent” issue.

One of the key tools to address teasing is promoting understanding and tolerance.

So is it really a “rights of the child” issue that excites all the fuss? Opponents of gay adoption remain adamant that a gay-family structure is damaging – but to whom? Why does the institution of the heterosexual family require such vehement defence?

Is it really true that a child’s best interests are necessarily served by having a mother and a father? An optimal home environment for a child provides both nurturing and resourcing. These roles are not gender specific.

So, finally, what arguments are left other than a bald, unsubstantiated assertion that heterosexual families are simply best for children? Is the “threat” of gay adoption not really about the “best interests of the child”, but rather its perceived challenge to a narrow, imagined notion of an ideal family?

Since time immemorial the true, rather than imagined, reality is that children have been raised in a variety of settings. One person or many may provide the nurturing and resourcing roles: family members, friends and teachers all contribute. Opponents of gay adoption would do well to take a longer and wider view of child-raising in the world, and, frankly, get over it.

JOHN BARICH, the case against . . .

THE 1994 Adoption Act declares that the “paramount considerations to be taken into account in the administration” of that Act are “the welfare and best interests of a child who is an adoptee or a prospective adoptee; the principle that adoption is a service for a child who is an adoptee or a prospective adoptee; and the adoption of a child should occur only in circumstances where there is no other appropriate alternative for the child”.

Nothing in these considerations refers to any alleged “right” of couples, of any kind, to adopt.

Therefore, the question of whether a homosexual couple should be treated equally to a married couple does not arise, except in the context of asking what is in the best interest of the child.

The onus is on those advocating adoption by homosexual couples to establish that the best interest of a child can ever be served by intentionally depriving the child of a father or a mother.

This is the necessary consequence of placing a child for adoption with a male homosexual couple or a lesbian couple.

Advocates of adoption by homosexual couples frequently claim about 50 studies have shown no difference in outcome between children raised by married or homosexual couples.

Any social-science study depends for its validity on following rigorous statistical and research procedures.

Dr Robert Lerner and Dr Althea Nagai – experts in quantitative analysis – after dissecting each of 49 of such studies, found at least one fatal research flaw in each.

These studies are therefore no basis for good science or public policy.

On the other hand, there is a large and reliable body of evidence that there are gender-linked differences in parenting skills.

Men and women add different strengths to their children’s development.

Fathers and mothers interact differently with their infant children.

Fathers tend to play with their children more physically, while mothers smile and talk more to them.

Fathers tend to encourage curiosity and problem solving and are less solicitous about failure.

Mothers provide more expressive and nurturing child-rearing.

What a perverse idea of fairness is it to decide that a little boy or girl shall never be able to call anyone “Mummy” because the next couple in the adoption queue is a pair of male homosexuals?

Adoption creates a legal, lifelong bond between a child and the new parents.

It provides a vital service to those children whose natural parents freely decide that they are unable or unwilling to care for and raise them.

The state has a grave obligation to ensure that it acts only in the best interests of these children and ignores the self-serving interests of any adults demanding a “right to adopt”.

Millennia of human experience, common sense and weighty research support the presumption that the best interest of the child is served by entrusting him or her to a mother and father in a stable marriage.

The advocates of adoption by homosexual couples cannot meet the burden of proof required to rebut this presumption.

The Australian Family Association welcomes the commitment of the Liberal Party to repeal the unjust provision of the Act that permits adoption by homosexual couples.

This provision was introduced by the Gallop Government – not after any comprehensive review of the needs of children, but on demands for equality from a small, influential group of adults.

We urge the Gallop Government to likewise consider repealing this provision.

[Link: Original Article]

A GAY couple have been approved to adopt a child – a WA first under liberalised laws that came into force in 2002.
The application, by a male couple, has been approved by the Department for Community Development.

The historic laws allow same-sex couples to adopt children if they can convince authorities they would make suitable parents – the same criteria for heterosexual couples.

The gay partners are among 118 WA couples approved to adopt a child, most of whom will wait an average of two years.

But the two men may never become fathers because a child’s birth mother also has to approve the foster parents.

Opposition Leader Matt Birney slammed the department’s decision, saying it was disappointing, disturbing and against a child’s best interests.

He said the debate about same-sex parents had been “hijacked” by a focus on the rights of gay parents rather than the rights of children.

“I can’t support it. I find it very disappointing and I think most people out there would find this quite disturbing,” he said.

Mr Birney said every child deserved to grow up with the influence of a mother and a father.

“Out in the real world, you don’t always have that opportunity, but in this case the Government can provide that opportunity,” he said.

“Instead, they are imposing their own political ideology on the system and denying a child the best start in life he or she could have.”

Australian Family Association WA branch president John Barich described the liberal laws as obscene, anti-social and against the community’s wishes.

But Greens MP Giz Watson, a lesbian whose partner of 16 years has three children, said critics of gay adoption were old-fashioned and ill-informed.

She said it was good news the gay couple had taken advantage of the changed laws because sex and sexuality had no bearing on being a good parent.

“There are many examples of same-sex couples raising children in a healthy, loving and stable home environment,” she said.

“The main thing to recognise is that a stable, loving couple provide the best environment for children, and gay couples are just as capable as heterosexual couples of providing that.”

Despite adoption approval here, the gay couple cannot adopt a foreign child because no other country accepts applications from same-sex couples.

In WA, relinquishing mothers have to give their tick of approval to potential foster parents.

Department for Community Development acting adoptions manager Bob Sprenkels said it meant the gay couple could be “chosen at any time or may never be chosen”.

Ms Watson agreed that relinquishing parents should have the final say on who could adopt their child.

But gay couples should be considered on the same terms as heterosexual couples, she said.

[Link: Original Article]

Prime Minister John Howard has spoken out against an ACT law which allows homosexual couples to adopt children.

Federal cabinet was reported to be considering overturning the law, which was passed last month by the ACT Legislative Assembly.

The federal parliament has the power to override territory laws and in 1997 overturned a Northern Territory law which legalised voluntary euthanasia.

Mr Howard said he did not support the ACT gay adoption law.

“I don’t support gay adoption, no,” Mr Howard told the John Laws radio program.

“I’m against gay adoption, just as I’m against gay marriage.

“I think there are certain benchmark institutions and arrangements in our society that you don’t muck around with.

“Children ideally should be brought up by a mother and a father who are married. That’s the ideal.”

Mr Howard said he knew unmarried couples could be good and loving parents, but the best conditions for children were to be raised by married parents.

“I believe in the maximum conditions of stability for people who have children,” he said.

“I think it is incredibly important that people have role models of both sexes.”

Mr Howard has previously written to the ACT’s Labor Chief Minister Jon Stanhope expressing concerns about gay adoption and the territory’s bill of rights.

Mr Stanhope said he believed Mr Howard was bluffing and would not intervene to overturn ACT laws.

“I can’t believe that the prime minister would seriously think it appropriate for the Commonwealth to intervene in the ACT’s affairs to overturn some fairly basic human rights legislation,” Mr Stanhope told ABC radio.

Federal Labor leader Mark Latham has said he will oppose any move to overturn the gay adoption law.

[Link: Original Article]

Prime Minister John Howard today condemned Australia’s first laws which will allow gay couples to adopt children.

He said the new ACT laws were an example of political correctness, but said children should ideally be raised by a married mother and father.

The new laws in the ACT are part of a new ACT Bill of Rights.

But federal cabinet is expected to examine the laws and to decide whether or not the federal government should intervene and have them overturned.

Federal parliament has previously used its constitutional powers to overturn the Northern Territory laws on voluntary euthanasia.

Mr Howard said he had examined the ACT laws and said he opposed any bill of rights, as it could lead to limits on individual freedoms.

“I think the idea of the ACT having a bill of rights is ridiculous. If you’re going to have things like that, they should be done on a nationwide basis,” he told the John Laws radio program.

“This is political correctness inside the Labor Party parading itself for all the world to see.”

He said he did not support gay adoptions.

“I don’t support gay adoption, no,” Mr Howard said.

“I’m against gay adoption, just as I’m against gay marriage.

“I think there are certain benchmark institutions and arrangements in our society that you don’t muck around with.

“Children ideally should be brought up by a mother and a father who are married. That’s the ideal.”

Mr Howard said he knew unmarried couples could be good and loving parents, but the best conditions for children were to be raised by married parents.

“I believe in the maximum conditions of stability for people who have children,” he said.

“I think it is incredibly important that people have role models of both sexes.”

[Link: Original Article]

The Tasmanian Family Institute says its report on same-sex adoptions has found children fare better when raised by a mother and father.

The report, released in Launceston yesterday, recommends no changes be made to the present laws.

It also condemns the Tasmanian Law Institute for its handling of the issue and says public opinion is clearly against law reform.

The report comes as the Tasmanian Upper House prepares to debate legislation aimed at strengthening the rights of same sex couples.

The Institute’s director, Michael Ferguson, says research shows a traditional married relationship is the most favourable environment for a child.

“The case for same sex adoptions has not been adequately made except in the political arena under the guise of anti-discrimination,” he said.

“The fact is, we conclude this is not in the best interests of children as some people have advocated.”

Gay advocates have dismissed the report as predictable.

Tasmanian Gay and Lesbian Rights Group spokesman Rodney Croome says the Family Institute had fixed views on same-sex parenting before it began its inquiry.

“It was inevitable that the Tasmanian Family Institute would find that gay parenting is something that is not in the best interests of children because that’s been their position all along,” he said.

“It is essentially an anti-gay organisation, so effectively this report has as much credibility as a Ku Klux Klan report on race relations.”

[Link: Original Article]

Tasmania’s Attorney-General, Judy Jackson. Photo: Bruce Miller

The issue of gay adoption in Tasmania has rekindled debate on whether or not children need a female and a male parent, writes Bettina Arndt.

GAY rights should not include the right to adopt children. That is the message the Tasmanian Government has been hearing since the state’s Attorney-General, Judy Jackson, last year proposed new legislation allowing same-sex couples to adopt.

Since then, the Government has found that two-thirds of 400 individual and 900 duplicate submissions sent to the Law Reform Institute’s inquiry opposed the proposal and MPs have been showered with correspondence expressing similar sentiments, and Jackson has backed down. Late in March she announced she may not even legislate on the issue.

Two years ago the Carr Government introduced legislation on adoption reform, but it has not addressed the issue of adoptions by same-sex couples. Ditto in Victoria, where last year 43 acts were amended to include same-sex partners but adoption remained restricted to heterosexuals. Western Australia is the only state that has bitten the bullet, having last year passed legislation legalising gay adoption. The Tasmanian Government understands similar proposals are mooted in South Australia and Queensland.

The issue remains controversial and rightly so, says Jacqueline Prichard, a clinical psychologist working in disability services for the Tasmanian Government. Prichard, with her husband, Jeremy, a PhD student at the University of Tasmania law school, has made a submission challenging the assumption promoted by the commission – that there is good evidence that children fare as well with same-sex parents as they do in other families.

Australians have been told often that research shows these children are thriving. A Sydney University law lecturer, Jenni Millbank, wrote in the Herald early this year: “Nearly three decades of research has consistently yielded the same results: the children of lesbians and gay men are in no way disadvantaged or badly affected.”

During the debate on access for lesbian women to IVF, there were media stories, often quoting Millbank, making the same claim. It is a claim also repeated in family law cases involving gay couples. Chief Justice Alistair Nicholson referred to Millbank when he proclaimed in 1996 that sexual orientation is irrelevant in disputes about children.

Dr Ruth McNair, a Victorian GP and member of the Victorian ministerial advisory committee on gay and lesbian health, has a similar conclusion: “Having looked at the international reviews, it seems children raised by gay and lesbian parents do just as well as children in heterosexual families.”

But the Prichards say the evidence is not there, quoting recent overseas publications which have concluded the research on homosexual parenting is biased, methodologically flawed and inconclusive. “There is insufficient evidence to support the view that children adopted by same-sex parents will not suffer adverse consequences,” the Prichards said in their submission to the Law Reform Institute.

Jeremy Prichard argues that a government has a duty of care towards the children for whom it chooses adoptive parents. “Thus, in a sense, an ‘onus of proof’ lies upon the state to prove these children will experience no adverse consequences by changing the law to allow same-parents to adopt them,” he says. What’s wrong with the research? Well, just about everything, according to the recent analyses quoted by the Prichards. The sample sizes were small, there were not enough controls for confounding variables, missing or inadequate comparison groups, non-random samples and unreliable or invalid measurements.

American researchers Robert Lerner and Althea Nagai, experts in the field of quantitative analysis, evaluated 49 studies on homosexual parenting – studies often used to “prove” that a child is not adversely affected by gay parenting. All 49 studies were found to have at least one major flaw.

Lerner and Nagai, who published their 2001 analysis in a paper entitled No Basis: What the Studies Don’t Tell Us about Same-Sex Parenting, conclude: “The methods used … are so flawed that these studies prove nothing … the studies on which such claims are based are all gravely deficient …Therefore they should not be used in legal cases to make any arguments about homosexual versus heterosexual parenting.”

This conclusion was shared by Professor Lyn Wardle, who criticised the same-sex parenting research in a 1997 article in the University of Illinois Law Review. After examining the use of this research in US legal cases, Wardle argues that until concerns about the current “badly flawed” research are dispelled, “it would not be rational to adopt a public policy endorsing or legitimating homosexual parenting”.

Last year a British sociologist, Patricia Morgan, weighed in with her own analysis, Children as Trophies – Examining the Evidence on Same-Sex Parenting. Morgan criticises the research for often including only very young children, which precludes any possibility of picking up long-term effects. She says many of the children spend their formative years in heterosexual families before the homosexual family is formed, which makes findings difficult to interpret.

The few studies which track children to adulthood are also flawed, according to Morgan. She criticises Fiona Tasker and Susan Golombok’s work published in Growing Up in a Lesbian Family for comparing children of lesbian women who have PhDs with those of poorly educated lone parents and for downplaying negative effects such as teasing by peers.

Morgan says is it is astonishing that “gushing personal testimonies” by lesbian parents should be “reverentially accepted by public bodies, academics and research institutes who would immediately laugh away the use of similar materials as evidence elsewhere”.

Gay lobby groups have responded by pointing out that Lerner and Nagia work for the Marriage Law Project, a legal initiative operated by the Washington-based Catholic University and Morgan’s book is published by a British Christian institute. They use the link to religious organisations to allege that the criticisms stem from conservative anti-gay bigotry.

But charges of bias work both ways. It was a lesbian activist – a University of Virginia researcher, Charlotte J. Patterson – who wrote the policy statement when in 1995 the American Psychological Association came out in support of gay parenting. Other professional organisations followed, with the American Academy of Pediatrics (AAP) last year using this body of research to endorse adoption by gay parents.

This has led to heated public brawling over the issue. “The AAP’s policy statement is more of a commitment to disturbing social engineering than one to good policy based on sound research,” said the Physicians Resource Council, demanding that the AAP withdraw its position statement. Citing the “fatal flaws” common to all research in the area, the council proclaimed: “The most one can conclude from the existing data is that more research of better quality is desperately needed. In the absence of conclusive evidence showing that parenting outcomes are the same between same-sex and heterosexual parents, the academy should remain silent.”

Jacqueline Prichard agrees there is not enough evidence for any professional body to reach firm conclusions about the impact on children of growing up in lesbian families. “It is appalling that this research is so often presented as if it proves children are doing well in these families when we just don’t know that. And the ne
gative results which have emerged in the research are usually totally ignored.”

She says she was motivated to get involved in this issue purely by “concern about the misrepresentation of research findings”.

She mentions 1996 research by Dr Sotirios Sarantakos, a Charles Sturt sociology professor (published in the journal Children Australia), which found children of homosexual couples perform less well at school than children with heterosexual parents – a result Sarantakos attributes to the stress of dealing with anti-gay prejudice. “It is difficult to accept that living in a family environment that is condemned by the community, in which homosexuals and their children are subjected to discrimination, disadvantage, negative criticism, humiliation, harassment, embarrassment, exclusion, hostility, injustice and media bashing, offers as good a place to grow as that of heterosexual relationships,” he writes in his recent book Same-Sex Couples.

Sarantakos says that while not all children struggle with these problems, for others the situation is likely to reduce the child’s sociability – as he found when he interviewed children of gay parents about their experiences.

“Yes, I never told anyone about it.. How could I, anyway … tell them my father is a faggot and sleeps with another man. You know how kids are, they hate these kind of things and love to discover such stories to talk about for weeks … I had to pretend and live in a different world when at school,” one son of a gay father told him.

Sarantakos’s research, which compared 58 children of same-sex couples with the same number in matched heterosexual families, found a far higher proportion of children in the same-sex families identified themselves as homosexual or were labelled as such by their parents. He found that result unsurprising because the gay family provides both factors likely to provide the genesis for homosexuality – environment plus genetic make-up.

A review of the literature on this issue by two University of Southern Californian sociologists, Judith Stacey and Timothy Biblarz, concludes there is evidence supporting Sanantakos’s results but this is often downplayed by researchers for fear that it will increase prejudice against gay parents.

A Tasmania University law professor, Kate Warner, who co-wrote the Law Reform Institute issues paper, responds to criticism alleging bias by pointing out that the initial paper relied on summaries of the research, such as those of Millbank or Patterson, which appeared in refereed journals. “We’ve remedied that, now that we have had longer to look at it,” she says, promising a more inclusive coverage in their final report, due for release on May 19.

Warner says the adoption issue will rarely involve an unrelated gay family adopting a child but rather adoption by the partner of the gay mother or father, sometimes following a planned pregnancy – a situation which simply provides more stability for the family.

In unrelated situations, now that birth mothers have a say in the choice of adoptive family, gays are unlikely to be chosen as evidenced by a submission to the institute by a Tasmanian Centacare adoption social worker, Philippa Chapman: she says that no birth mother has requested her child to be placed with same-sex parents.

But as Jeremy Prichard puts it, the issue is one of principle: “However few the actual numbers, the state must be confident that it has good evidence that change in policy will not endanger the welfare of any children.”

[Link: Original Article]

LIBERAL justice spokesman Michael Hodgman should apologise to gayparents , Tasmanian Gay and Lesbian Rights Group spokesman Rodney Croome said.

Mr Hodgman yesterday urged the release of legislation which would allow same-sex couples to legally adopt children.

“The Bacon Labor Government has gagged its own members from speaking freely on this unmandated aspect of its radical social engineering reform agenda,” Mr Hodgman said.

“Making the draft legislation public well in advance would allow the community to have its say and aid in the identification and correction in the legislation that might not be in the interests of Tasmanian children.”

Mr Croome said the Denison MHA’s comments denigrated Tasmanian gay and lesbian parents.

“There is nothing new or radical about lesbian and gay people raising children,” Mr Croome said.

He said adoption would provide foster children and step-children with greater emotional, financial and legal security.

“Mr Hodgman owes an apology to all those lesbian and gay parents helping to raise the next generation of Tasmania,” Mr Croome said.

The law is expected to most commonly apply to gay couples raising children from previous heterosexual partnerships, giving them the same legal rights available to married parents.

“There are many cases of single parents doing an excellent job but when it comes to adoption, the basic principle of having a mother and father is what the community tells us they want,” Mr Hodgman said.

Introduction

Same sex parenting is becoming more common, yet parenting by gay and lesbian couples is not recognised under Australian law; same sex couples may not marry and currently there is no provision for joint adoption applications from same sex couples.(1)

This note will briefly examine the law in Australia, the law in Canada and the outcome of a recent landmark Canadian decision concerning same sex adoption.

The Law in Australia

In Australia, the law governing adoption is mainly contained in State and Territory legislation. That legislation determines who may adopt and be recognised as the parent of a child. While the Family Law Act 1975 regulates private aspects of parenting such as with whom a child lives or has contact, it does so against the background of parental status as determined by State/Territory laws.(2) Generally speaking, Australia’s adoption laws are geared towards heterosexual couples. The law in Victoria and NSW will be used as illustrative examples.

Victoria

In Victoria The Adoption Act 1984 states:

An adoption order may be made in favour of a man and a woman who are married to each other and have been so married for not less than two years.(3)

As well as de facto relationships, traditional indigenous marriages are also given recognition. The Act goes on to state that where the Court is satisfied that special circumstances exist, it may make an adoption order in favour of one person.(4) In some instances under the Children and Young Persons Act 1989 (which is unique to Victoria) same sex couples may be granted permanent care orders.(5) However, permanent care, unlike adoption, does not sever parental ties, so same sex couples face the prospect of the child’s biological parent(s) playing an on going role in the child’s life, or possibly having the child legally returned to the biological parent(s).

New South Wales

The Adoption of Children Act 1965 states:

An adoption order shall not be made otherwise than in favour of a husband and wife jointly.(6)

The Court may make an adoption order in favour of a man and a woman who are living together as husband and wife on a bona fide domestic basis although not married.(7) Where the Court is satisfied that in the particular circumstances of the case it is desirable to do so, the court may make an adoption order in favour of one person.(8)

The Law in Canada

Canadian law has not recognised same sex couples in the way it has married couples (and in some cases, opposite sex defacto couples). However the courts have had to grapple with a growing number of challenges to legislation and policies which treat these couples differently, particularly challenges which have been based on the principle of equality enshrined in the Canadian Charter of Human Rights and Freedoms 1982 (the Charter), and in provincial and federal human rights legislation. These challenges have focused on a range of legislation and policies, including marriage, adoption and pension plans.

The Canadian Charter of Human Rights and Freedoms 1982

Section 15 of the Charter guarantees every person the equal benefit and protection of the law without discrimination. In particular the Charter prohibits discrimination on grounds of sex. The Supreme Court of Canada has held that sexual orientation is an additional ground of discrimination prohibited by the Charter.(9) Canadian federal and provincial anti-discrimination law now prohibits discrimination on the basis of sexual orientation. In fact in Haig v Canada(10)and Vriend v Alberta,(11) it was held that failure to prohibit discrimination on the grounds of sexual orientation in the Canadian Human Rights 1985 and the Individual’s Rights Protection Act 1980 violated s15 of the Charter-it denied homosexual people the formal equality and protection from discrimination given other disadvantaged groups.

In the case of Re K and B,(12) the Ontario Court found the Child and Family Services Act 1990 (Ontario) infringed section 15 of the Charter by not allowing same sex couples to bring a joint application for adoption. The court modified the Act’s definition of spouse to include same sex couples, thereby permitting same sex joint applications under the Act. As the result of legislative amendments same sex couples may also jointly apply to adopt in the provinces of Quebec, British Columbia, Ontario and Saskatchewan. These provinces have already amended laws to remove discrimination against gay men and lesbians, following a Supreme Court of Canada ruling that homosexual couples should enjoy the same rights as heterosexual couples.

Landmark Decision: Re A

Alberta can be added to the list of provinces that permits same sex couples to adopt jointly. The judgement in Re A was given on November 26, 1999 in the Alberta Court of Queens Bench by Martin J.(13) The questions addressed by the Judge were whether the definition of ‘spouse’ in the spousal adoption provisions of the Child Welfare Act 1984 included same sex couples, and, if not, whether these sections violate section 15 of the Charter.

Martin J summarised the issues as follows:

* It is reasonable and just to interpret the term ‘step-parent’ to include same sex couples. (In particular because the legislature acknowledged that there are diverse family structures.)
* Same sex couples may constitute ‘families’, able to perform enumerated functions to the same extent as traditional families.
* The overriding consideration must be: the nature of the petitioner’s relationship with the child, i.e. whether that person has made a commitment to assume the role of the parent to that child .

Given the answer to the first question was that the legislative definition included same sex couples, the Charter issue was not addressed. However Martin J did note that in Re K and B the court found that a restrictive definition of ‘spouse’ in adoption legislation was unconstitutional.

Outcomes

In his ruling, Martin J approved the adoptions, looking past the traditional approach and focussing instead on the best interests of the children. He held that the lesbian couple were amply qualified to become the legal parent of a child that they had raised since birth. He pointed out that every case is decided on the basis of individual facts, and, as in all cases, the application will only be approved if the court is satisfied that it is in the best interests of the child.

The Role of Legislation

Adoption legislation provides minimum requirements for eligibility, guiding the Court as to what it must examine in considering whether to grant an order for adoption. In Re A, Martin J stated that legislation should only look to the suitability of parents, rather than to their sexual orientation. Comparable propositions were made on this issue by a NSW Law Reform Commission Report in 1997 which stated that legislation should support flexibility and adaptability in agency decision-making, rather than restrict the types of adoptive parents able to be considered by adoption professionals.(14) As the Report says, ‘[t]here is no established connection, positive or negative, between people’s sexual orientation and their suitability as adoptive parents.’(15)

Arguably, legislation must take into consideration different types of family structure, differences in the lifecycle stages and differing community contexts.(16) It must also be examined to ensure that it is based on assumptions that reflect current attitudes and beliefs.

Conclusion

The law in Australia has not moved in the same direction as Canada on the issue of
granting same sex couples adoption rights. In fact, like many other countries, same sex couples face discrimination in many Australian pieces of legislation- State, Territory and Commonwealth. In legal terms, the traditional nuclear family is still paramount. The growing popularity of gay parenting is set to cause its own share of legal complications, especially when gay men and lesbians want to be actively participating in parental caring. Canadian decisions in various provinces and the most recent ruling in Alberta do not mean that gays and lesbians will automatically be granted adoption rights. The best interests of the children involved will be considered in same sex cases, as it is in other applications. Canada has explored these issues, while Australian courts and parliaments have yet to address or consider them in detail. It is conceivable that Australia might choose to utilise Canadian precedent in this area.

1. See for example ‘Gay groups seek changes to parenting laws’, Sunday Age, 9 Jan 2000; Jenni Millbank ‘The De Facto Relationships Amendment Bill 1998′, Australasian Gay and Lesbian Law Journal, vol. 8, May 1999; William Rubenstein, ‘We are family: a reflection on the search for legal recognition of lesbian and gay relationships’ Journal of Law and Politics, vol. 8, no. 1, Fall 1991.

2. Danny Sandor, ‘Same Sex Couples can Adopt in Ontario: The Canadian Case of Re K and its Significance to Australian Family Law’, Australian Journal of Family Law, vol. 11, March 1997, p.38.

3. Subsection 11 (1)(a).

4. Subsection 11(3)

5. Section 112

6. Subsection 19(1)

7. Subsection 19 (1A)

8. Subsection 19(2) and (1B).

9. Vriend v Alberta (1998) 156 DLR (4th).

10. (1992) 94 DLR (4th).

11. (1998) 156 DLR (4th).

12. (1995) 125 DLR (4th) 653.

13. [1999] A.J. No. 1349.

14. NSW Law Reform Commission Report 81, Review of the Adoption of Children Act 1965 (1997). Chapters 6.

15. ibid, p. 230.

16. ibid.

[Link: Original Article]

Banks, F, Professor of Law, University of Newcastle, Newcastle NSW 2308

E Law – Murdoch University Electronic Journal of Law v.3 no.3 Sept 1996

By examining United States case law involving disputes of adoption and custody by homosexual individuals and couples, the author concludes that recent court decisions appear to have taken a more positive view of the gay and lesbian relationships which were involved in the various decisions. The author comments on the relevance of these decisions to the existing and future Australian situation. He concludes that, unfortunately, United States law does not seem to have had direct impact on Australian law. The author believes that due to societal pressures the courts in Australia leave the impression that gay and lesbian people are awarded rights, privileges or responsibilities in respect of children faute de mieux. Such pressures might also be seen to be responsible for extremely detailed judicial reasoning for making orders in favour of gay and lesbian people. Bates is critical of the Australian courts’ approach and believes that it is the responsibility of judicial and administrative officers, academics and all those interested in societal developments to ensure that they are resisted, and instead focus on the need for a child to be brought up in a secure and loving environment, regardless of the sexual orientation of the caregivers.

[Link: Original Article]